EMPLOYMENT AGREEMENT
THIS AGREEMENT effective as of the 23rd day of April, 1999 (the "Effective
Date").
BETWEEN:
SUNCOM TELECOMMUNICATIONS INC., a company duly incorporated pursuant to the
federal laws of Canada having an office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx, XXX, 00000
(the "Company")
OF THE FIRST PART
AND:
XXXXXXX XXXXX, businessman, of 000 Xxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxx, XXX,
00000
(the "Employee")
OF THE SECOND PART
RECITALS
WHEREAS the Company has requested the assistance of the Employee in providing
certain employment services, as hereinafter described;
WHEREAS the Employee has agreed to provide such assistance and services to the
Company in accordance with the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants set forth below, the parties hereto agree as follows:
1. DUTIES AND DEVOTION OF TIME
1.1 Duties. During the term of this Agreement the Employee shall be
responsible for the duties contained in Schedule "A" attached hereto and
incorporated herein by this reference (the "Duties").
1.2 Devotion of Time. The parties hereto acknowledge and agree that
the work of the Employee is and shall be of such a nature that regular hours are
insufficient and impractical and occasions may arise whereby the Employee shall
be required to work more than eight (8) hours per day and/or five (5) days per
week. It is also anticipated that the Employee may be required to work during
evenings, Saturdays, Sundays and Public Holidays. The Employee agrees that the
consideration set forth herein shall be in full and complete satisfaction for
such work and services, regardless of when and where such work and services are
performed. The Employee
further releases the Company from any claims for overtime pay or other such
compensation which may accrue to the Employee by reason of any existing or
future legislation or otherwise. Notwithstanding the foregoing, the Company
agrees that so long as the Employee properly discharges her duties hereunder,
the Employee may devote the remainder of her time and attention to other
non-competing business pursuits.
1.3 Business Opportunities the Property of the Company. The Employee
agrees to communicate immediately to the Company all business opportunities,
inventions and improvements in the nature of the business of the Company which,
during the term of this Agreement, the Employee may conceive, make or discover,
become aware of, directly or indirectly, or have presented to her in any manner
which relates in any way to the Company, either as it is now or as it may
develop, and such business opportunities, inventions or improvements shall
become the exclusive property of the Company without any obligation on the part
of the Company to make any payments therefor in addition to the salary and
benefits herein described to the Employee.
1.4 No Personal Use. The Employee shall not use any of the work the
Employee shall perform for the Company for any personal purposes without first
obtaining the prior written consent of the Company.
2. SALARY, BONUSES AND BENEFITS
2.1 Salary. In consideration of the Employee providing the services
referred to herein, the Company agrees to pay the Employee a monthly base salary
(the "Monthly Base Salary") of ten thousand U.S. dollars ($10,000) less
applicable deductions, payable bi-weekly, plus the performance bonus as set out
below, subject to increase from time to time as approved by the Board of
Directors of the Company or as agreed to in writing from time to time by both
parties.
2.2 Benefits. The Company shall provide, maintain and pay for:
(a) medical insurance for the Employee and her immediate family as is
provided by the Company's medical services plan; and
(b) such extended health and other benefits for the Employee and her
immediate family as are provided to other employees of the Company, subject to
the eligibility of the Employee.
2.3 Performance Bonus. The Company will pay to the Employee a
performance bonus (the "Performance Bonus") for the year ended December 31, 1999
in the amount of one million (1,000,000) common shares in the capital of the
Company for the realization of specified performance objectives, as initially
defined in Schedule "B" attached hereto and incorporated hereinafter by
reference, and for subsequent calender years, in such number of shares and upon
such performance objectives as is set from time to time by the Board of
Directors of the Company, or as amended in writing from time to time by the
Board of Directors of the Company.
2.4 Payment in Cash or Shares. All payments payable by the Company to
the Employee, including the Monthly Base Salary, the Performance Bonus and
reimbursement of expenses under Section 4.1 hereof, shall be payable in cash or,
at the election of the Employee, and subject to the approval of the regulatory
authorities, such will be paid in whole or in part in common shares in the
capital of the Company ("Remuneration Shares"), issued at the 10 day average
closing price (for the 10 days prior to the Employee's election) of the
Company's common shares on any stock exchange or quotation system upon which the
Company's common shares are listed or quoted for trading.
2.5 Registration of Performance Bonus Shares. To ensure that any
shares issued to the Employee under paragraph 2.3 of this Agreement are freely
tradable, the Company shall register with the United States Securities and
Exchange Commission (the "SEC") any such shares issued. Upon or as soon as is
practical after the issuance of such shares, the Company shall file a form S-8
or other appropriate form with the SEC to effect registration.
2.6 Signing Bonus. In consideration of the Employee entering into this
Agreement, the Company agrees to pay the Employee a signing bonus of one million
two hundred and fifty thousand (1,250,000) common shares in the capital of the
Company (the "Signing Bonus Shares"). The Signing Bonus Shares shall be paid
within thirty (30) days of the execution of this Agreement by all parties
hereto. The Employee acknowledges that the Signing Bonus Shares will be subject
to a one year hold period; however, the Company will add registration of the
Signing Bonus Shares to any other share registration that the Company may file
with the SEC during the year.
3. VACATION
3.1 Entitlement to Vacation. The Company acknowledges that the
Employee shall be entitled to an annual vacation of three (3) weeks. The
Employee shall use her best efforts to ensure that such vacation is arranged
with the Company in advance such that it does not unduly affect the operations
of the Company.
3.2 Increase in Vacation. The period set out in Section 3.1 above may
be increased from time to time as mutually agreed to by the Employee and the
Board of Directors.
4. REIMBURSEMENT OF EXPENSES
4.1 Reimbursement of Expenses. The Employee shall be reimbursed for
all reasonable out-of-pocket expenses incurred by the Employee in or about the
execution of the Duties contained herein, including without limitation, all
reasonable travel and promotional expenses payable or incurred by the Employee
in connection with the Duties under this Agreement. All payments and
reimbursements shall be made within ten (10) days of submission by the Employee
of vouchers, bills or receipts for such expenses.
5. CONFIDENTIAL INFORMATION
5.1 Confidential Information. The Employee shall not, either during
the term of this Agreement or at any time thereafter, without specific consent
in writing, disclose or reveal in any manner whatsoever to any other person,
firm or corporation, nor will she use, directly or
indirectly, for any purpose other than the purposes of the Company, the private
affairs of the Company or any confidential information which she may acquire
during the term of this Agreement with relation to the business and affairs of
the directors and shareholders of the Company, unless the Employee is ordered to
do so by a court of competent jurisdiction or unless required by any statutory
authority.
5.2 Non-Disclosure Provisions. The foregoing provision shall be
subject to the further non-disclosure provisions contained in Schedule "C"
attached hereto and incorporated hereinafter by this reference.
5.3 Provisions Survive Termination. The provisions of this section
shall survive the termination of this Agreement.
6. TERM
6.1 Term. This Agreement shall remain in effect until terminated in
accordance with any of the provisions contained in this Agreement.
7. TERMINATION
7.1 Termination by Employee. Notwithstanding any other provision
contained herein, the parties hereto agree that the Employee may terminate this
Agreement, with or without cause, by giving ninety (90) days written notice of
such intention to terminate.
7.2 Resignation or Cessation of Duties. In the event that the Employee
ceases to perform all of the Duties contained herein, other than by reason of
the Employee's death or disability, or if the Employee resigns unilaterally and
on her own initiative from all of her positions this Agreement shall be deemed
to be terminated by the Employee as of the date of such cessation of Duties or
such resignation, and the Company shall have no further obligations under
Section 2 hereof.
7.3 Termination by Company. The Company may terminate this agreement
at any time for just cause. The parties further agree that except for
termination for just cause, the Company may not terminate this Agreement without
payment, at that time, to the Employee of a termination allowance equivalent to
one and one-half (1.5) months of the Monthly Base Salary payable by the Company
to the Employee, regardless of the date of termination.
7.4 Death. In the event of the death of the Employee during the term
of this Agreement, this Agreement shall be terminated as of the date of such
death.
7.5 Disability. In the event that the Employee will during the term of
this Agreement by reason of illness or mental or physical disability or
incapacity be prevented from or incapable of performing the Duties hereunder,
then the Employee shall be entitled to receive the remuneration provided for
herein at the rate specified hereinbefore for the period during which such
illness, disability or incapacity will continue, but not exceeding six (6)
successive months. If such illness, disability or incapacity continues or will
continue for a period longer than six (6) successive months, then this Agreement
may, at the option of the Director of the Company, forthwith be terminated.
7.6 Termination Payments . Any payments made by the Company to the
Employee upon the termination of this Agreement shall, be made in cash in a lump
sum payment, or, if the Company does not have available funds, in equal monthly
cash instalments over one year with interest at 8% per annum, in Remuneration
Shares, or in a combination of cash and Remuneration Shares, subject to
regulatory approval. All payments required to be made by the Company to the
Employee pursuant to Section 7 hereof shall be made in full, irrespective of the
amount of the term remaining under this Agreement.
8. RIGHTS AND OBLIGATIONS UPON TERMINATION
8.1 Rights and Obligations. Upon termination of this Agreement, the
Employee shall deliver up to the Company all documents, papers, plans, materials
and other property of or relating to the affairs of the Company, other than the
Employee's personal papers in regard to her role in the Company, which may then
be in its or the Employee's possession or under his control.
9. CLOSING
9.1 Closing Date. This Agreement shall be effective on the day after
completion of the Purchase (as defined below).
9.2 Conditions of Closing. The parties hereto agree that it shall be a
condition of the execution of this Agreement that prior to or contemporaneously
with the execution of this Agreement:
(a) this Agreement shall be approved by the Board of Directors of the
Company;
(b) the Employee shall terminate any previously existing employment
contracts or terms; and
(c) the Company shall complete the purchase (the "Purchase") of all of the
assets of XxxxxxxXxxxxxx.xxx, Inc. ("VSI") pursuant to an Asset Purchase
Agreement between the Company and VSI.
10. NOTICES AND REQUESTS
10.1 Notices and Requests. All notices and requests in connection with
this Agreement shall be deemed given as of the day they are received either by
messenger, delivery service, or mailed by registered or certified mail with
postage prepaid and return receipt requested and addressed as follows:
(a) if to the Company:
Suncom Telecommunications Inc.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx, XXX, 00000
with a copy to:
XXXXX, XXXXXX
Xxxxx 000-000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xxxxxxx Xxxxxx
(b) If to the Employee:
Xxxxxxx Xxxxx
000 Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxx
X.X.X. 00000
or to such other address as the party to receive notice or request so designates
by written notice to the other.
11. INDEPENDENT PARTIES
11.1 Independent Parties. This Agreement is intended solely as an
employment services agreement and no partnership, agency, joint venture,
distributorship or other form of agreement is intended.
12. AGREEMENT VOLUNTARY AND EQUITABLE
12.1 Agreement Voluntary. The parties acknowledge and declare that in
executing this Agreement they are each relying wholly on their own judgment and
knowledge and have not been influenced to any extent whatsoever by any
representations or statements made by or on behalf of the other party regarding
any matters dealt with herein or incidental thereto.
12.2 Agreement Equitable. The parties further acknowledge and declare
that they each have carefully considered and understand the provisions contained
herein, including, but without limiting the generality of the foregoing, the
Employee's rights upon termination and the restrictions on the Employee after
termination and agree that the said provisions are mutually fair and equitable,
and that they executed this Agreement voluntarily and of their own free will.
13. CONTRACT NON-ASSIGNABLE; INUREMENT
13.1 Contract Non-Assignable. This Agreement and all other rights,
benefits and privileges contained herein may not be assigned by the Employee.
13.2 Inurement. The rights, benefits and privileges contained herein,
including without limitation the benefits of Sections 2 and 7 hereof, shall
inure to the benefit of and be binding upon the respective parties hereto, their
heirs, executors, administrators and successors.
14. ENTIRE AGREEMENT
14.1 Entire Agreement. This Agreement represents the entire Agreement
between the parties and supersedes any and all prior agreements and
understandings, whether written or oral,
between the parties. The Employee acknowledges that she was not induced to
enter into this Agreement by any representation, warranty, promise or other
statement, except as contained herein.
14.2 Previous Agreements Cancelled. Save and except for the express
provisions of this Agreement, any and all previous agreements, written or oral,
between the parties hereto or on their behalf relating to the services of the
Employee for the Company are hereby terminated and cancelled and each of the
parties hereby releases and further discharges the other of and from all manner
of actions, causes of action, claims and demands whatsoever under or in respect
of any such Agreement.
15. WAIVER
15.1 Waiver. No consent or waiver, express or implied, by either party
to or of any breach or default by the other party in the performance by the
other of its obligations herein shall be deemed or construed to be a consent or
waiver to or of any breach or default of the same or any other obligation of
such party. Failure on the part of any party to complain of any act or failure
to act, or to declare either party in default irrespective of how long such
failure continues, shall not constitute a waiver by such party of its rights
herein or of the right to then or subsequently declare a default.
16. SEVERABILITY
16.1 Severability. If any provision contained herein is determined to
be void or unenforceable in whole or in part, it is to that extent deemed
omitted. The remaining provisions shall not be affected in any way.
17. AMENDMENT
17.1 Amendment. This Agreement shall not be amended or otherwise
modified except by a written notice of even date herewith or subsequent hereto
signed by both parties.
18. HEADINGS
18.1 Headings. The headings of the sections and subsections herein are
for convenience only and shall not control or affect the meaning or construction
of any provisions of this Agreement.
19. GOVERNING LAW
19.1 Governing Law. This Agreement shall be construed under and
governed by the laws of the State of Illinois and the laws of the United States
applicable therein.
20. EXECUTION
20.1 Execution in Several Counterparts. This Agreement may be executed
by facsimile and in several counterparts, each of which shall be deemed to be an
original and all of which shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day of April, 1999.
SUNCOM TELECOMMUNICATIONS INC.
Per: /s/ signed
Authorized Signatory
)
)
)
SIGNED, SEALED and DELIVERED by )
XXXXXXX XXXXX in the presence of:. )
)
/s/ signed . . . . . . . . . . . . . . . . . . . . . . . . . . . . )
------------------------------------------------------------------ /s/ Xxxxxxx Xxxxx
Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ) -----------------
0000 X. Xxxxxxx Xx #1905) ) XXXXXXX XXXXX
------------------------------------------------------------------ )
Address. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . )
Xxxxxxx XX 00000 )
------------------------------------------------------------------ )
VP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . )
---------
Occupation . . . . . . . . . . . . . . . . . . . . . . . . . . . . )
SCHEDULE "A"
EMPLOYEE'S DUTIES
The Employee's Duties as those that are assigned to her from time to time by the
Board of Directors of the Company.
SCHEDULE "B"
OBJECTIVES
Revenue of $2,670,350 or more per month and Earnings before Income Taxes of
$72,269 or more per month by December 31, 1999 (the "Target Date"). The Target
Date may change due to unforeseeable circumstances or at the discretion of the
Board of Directors of the Company.
SCHEDULE "C"
NON-DISCLOSURE PROVISIONS
1. CONFIDENTIAL INFORMATION AND MATERIALS
(a) "Confidential Information" shall mean, for the purposes of this
Agreement, non-public information which the Company designates as being
confidential or which, under the circumstances surrounding disclosure ought
reasonably to be treated as confidential. Confidential Information includes,
without limitation, information, whether written, oral or communicated by any
other means, relating to released or unreleased the Company software or hardware
products, the marketing or promotion of any product of the Company, the Company
business policies or practices, and information received from others which the
Company is obliged to treat as confidential. Confidential Information disclosed
to the Employee by any subsidiary and/or agents of the Company is covered by
this Agreement.
(b) Confidential Information shall not include that information defined
as Confidential Information hereinabove which the Employee can exclusively
establish:
(i) is or subsequently becomes publicly available without breach of any
obligation of confidentiality owed by the Company;
(ii) became known to the Employee prior to disclosure by the Company to the
Employee;
(iii) became known to the Employee from a source other than the Company
other than by the breach of any obligations of confidentiality owed to the
Company; or
(iv) is independently developed by the Employee.
(c) Confidential Materials shall include all tangible materials
containing Confidential Information, including, without limitation, written or
printed documents and computer disks or tapes, whether machine or user readable.
2. RESTRICTIONS
(a) The Employee shall not disclose any Confidential Information to
third parties for a period of three (3) years following the termination of this
Agreement, except as provided herein. However, the Employee may disclose
Confidential Information during bona fide execution of the Duties or in
accordance with judicial or other governmental order, provided that the Employee
shall give reasonable notice to the Company prior to such disclosure and shall
comply with any applicable protective order or equivalent.
(b) The Employee shall take reasonable security precautions, at least
as great as the precautions it takes to protect its own confidential
information, to keep confidential the Confidential Information, as defined
hereinabove.
(c) Confidential Information and Materials may be disclosed,
reproduced, summarized or distributed only in pursuance of the business
relationship of the Employee with the Company, and only as provided hereunder.
The Employee agrees to segregate all such Confidential Materials from the
materials of others in order to prevent co-mingling.
3. RIGHTS AND REMEDIES
(a) The Employee shall notify the Company immediately upon discovery of
any unauthorized use or disclosure of Confidential Information or Materials, or
any other breach of this Agreement by the Employee, and shall co-operate with
the Company in every reasonable manner to aid the Company to regain possession
of said Confidential Information or Materials and prevent all such further
unauthorized use.
(b) The Employee shall return all originals, copies, reproductions and
summaries of or relating to the Confidential Information at the request of the
Company or, at the option of the Company, certify destruction of the same.
(c) The parties hereto recognize that a breach by the Employee of any
of the provisions contained herein would result in damages to the Company and
that the Company could not be compensated adequately for such damages by
monetary award. Accordingly, the Employee agrees that in the event of any such
breach, in addition to all other remedies available to the Company at law or in
equity, the Company shall be entitled as a matter of right to apply to a court
of competent jurisdiction for such relief by way of restraining order,
injunction, decree or otherwise, as may be appropriate to ensure compliance with
the provisions of this Agreement.
4. MISCELLANEOUS
(a) All Confidential Information and Materials are and shall remain the
property of the Company. By disclosing information to the Employee, the Company
does not grant any express or implied right to the Employee to or under any and
all patents, copyrights, trademarks, or trade secret information belonging to
the Company.
(b) All obligations created herein shall survive change or termination
of any and all business relationships between the parties.
(c) The Company may from time to time request suggestions, feedback or
other information from the Employee on Confidential Information or on released
or unreleased software belonging to the Company. Any suggestions, feedback or
other disclosures made by the Employee are and shall be entirely voluntary on
the party of said Employee and shall not create any obligations on the part of
the Company or a confidential agreement between the Employee and the Company.
Instead, the Company shall be free to disclose and use any suggestions, feedback
or other information from the Employee as the Company sees fit, entirely without
obligation of any kind whatsoever to the Employee.
